MADRAS CEMENTS LIMITED CHENNAI Vs. CHAIRMAN TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD CHENNAI

JUDGEMENT

(1.) Though the miscellaneous petitions have been listed for hearing by consent of the parties, the writ appeals are taken up for disposal. Since all these appeals have been filed against the common order dated 21 -10-2011 passed by the learned single Judge in a batch of writ petitions, they are being heard together and disposed of by this common judgment. For convenience, the facts in W. P. No. 18799 of 2011 are taken up for discussion.

(2.) The appellants/writ petitioners are reputed industrial establishments with considerable annual turnover. Being encouraged by the Government's policies in relation to wind energy generation, the writ petitioners had invested a large amount of money in wind energy generation and substantial portion of the energy generated by the wind turbines set up by the writ petitioners is being wheeled for its own use. In so far as the expenditure for the setting up of such wind turbines is concerned, the same is borne by the Wind Energy Generators (WEGs), such as the writ petitioners. As per Section 10 of the Electricity Act, 2003 (in short "the Act"), the generating companies are required to establish, operate and maintain generating stations, sub stations and transmission lines. Initially, the WEGs were small scale operators and could not erect the facilities required to transmit the electricity generated by them into the Tamil Nadu Electricity Board (TNEB) Grid and, therefore, the TNEB took on the responsibility of erecting separate sub-stations for the benefit of such small scale WEGs. The TNEB sought to collect the expenditure for erecting such sub-stations from the WEGs in the name of Infrasturcture Development Charges (IDC). The same was being imposed by the TNEB since 1995 and the TNEB had been continuing the regime even after the Act came into force. This action of the TNEB in seeking to impose IDC was challenged before the Tamil Nadu Electricity Regulatory Commission (TNERC) on the ground that specific permission had not been sought from the TNERC as per Section 32 of the Act and the TNERC held IDC to be invalid on the ground that the same was not contemplated as per the provisions of Section 32. On appeal, the Appellate Tribunal for Electricity overruled the decision of the TNERC and upheld the IDC on the ground that the same was a result of the respective contractual obligations of TNEB and WEGs. The ruling of the Appellate Tribunal has been challenged and the same is pending before the Hon'ble Supreme Court. The levy was upheld by the Appellate Tribunal only on the ground that it was the wind mill developer who had agreed to pay the IDC by entrusting the task of setting up of the infrastructure to TNEB. The said judgment has been misconstrued by the respondents to allow them to collect charges on the ground of an agreement between the parties.

(3.) According to the writ petitioners, after the Act came into force, the statute has, under the provisions contained in Sections 10 and 42, introduced the concept of Open Access, which essentially means that any generator would, upon satisfaction of the conditions, be entitled as a matter of right to use the transmission facilities of a distributor/ transmission licensee. Such Open Access is statutorily required to be regulated by framing of Regulations. The TNERC has already notified the "Tamil Nadu Electricity Regulatory Commission Intra State Open Access Regulations 2005", in short, "the Regulations" which regulate the open access. The charges for open access have been set out in Regulation 9 of the Regulations and the charges have been approved for (i) Transmission Charge/Wheeling Charge, (ii) Surcharge, (iii) Additional Surcharge, (iv) Scheduling and System Operation Charges, (v) Reactive Energy Charges, (vi) Grid Availability Charges and (vii) Restoration Charges. The Regulations further provide as follows: